Term
| what are the four kinds of property rights? |
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Definition
| exclude; possess; use; alienate |
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Term
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Definition
| tort action for recovery of real property |
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Term
| action for tresspass on the case |
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Definition
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Definition
| recovery for damage of real property |
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Definition
| recovery for damages to personal property |
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Term
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Definition
| recovery to get personal property back |
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Term
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Definition
| societal interests; custom; fairness |
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Term
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Definition
| if everyone has access to resource, the resource is depleted. |
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Term
| possession according to holmes |
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Definition
| relation of manifested power in relation to object in question and intent to exclude others from interfering with the object |
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Term
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Definition
| certain future possession or physical possession rules |
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Term
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Definition
| unintentionally parts; goes to finder; finder is a bailee for the true owner; sometimes the landowner on which the property is found can prevail over the finder |
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Term
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Definition
| owner intentionally puts property somewhere and forgets where; goes to owner of the premises where property is found; owner has superior rights |
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Term
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Definition
| owner intentionally parts with possession and gives up most rights; property goes to find or the employer of finder |
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Term
| what are the three kinds of found property |
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Definition
| lost, mislaid, abandonned |
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Term
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Definition
| lawful possession of another's property; property has been delivered by owner to possessor; delivery is pursuant an agreement [not necessary] |
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Term
| bailee is strictly liable if... |
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
| ordinary standard of care |
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Term
| burden of proof for bailee/bailor |
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Definition
| bailee has to show what happened to the property |
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Term
| adverse possession elements |
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Definition
| actual, continual, exclusive, hostile, open and notorious |
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Term
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Definition
| did adverse possessor share use no more than a true owner would? |
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Term
| how can hostility be defeated |
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Definition
| if true owner shows possessor was there with true owner's permission |
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Term
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Definition
| can show possession but only if it is a boundary fence. |
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Term
| how can true owners stop sol clock? |
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Definition
| kick possessors off; staying on the land; filing for ejectment |
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Term
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Definition
| 2 adverse possessors can tack their sol times |
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Term
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Definition
| if real title is transferred clock continues to run for adverse possessor despite transaction. |
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Term
| what if you're just there on the weekends? |
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Definition
| depends on the terrain and if you use it as a real owner would |
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Term
| what is the standard for actual possession |
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Definition
| whether possessor is acting in the same manner as the true owner |
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Term
| what does hostile possession mean? |
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Definition
| land is occupied without owner's permission and possessor acted toward land as if he owned it. |
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Term
| what is open and notorious when trespass is tiny? |
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Definition
| for small pieces of land, the owner must know of the trespass. |
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Term
| what is open and notorious? |
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Definition
| others know about and they assume it is your property; you use it as your property and others see and think it's your property |
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Term
| how can you tack adverse possession |
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Definition
| must be intent to transfer property |
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Term
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Definition
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Term
| how many witnesses for a will? |
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Definition
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Term
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Definition
| It is the 'largest' estate to the law and it is unlimited in duration. The estate is inheritable, alienable, and devisable by will through the current owner of the estate. |
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Term
| what is the language that conveys a fsa? |
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Definition
| 1) to A and his heirs; 2) to A, his heirs and assigns; and 3) to A. |
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Term
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Definition
| They are created so the owner, the owner's successors, or a third party can possess the estate conferred in light of the occurrence of specified events. |
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Term
| fee simple determinable estate |
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Definition
| The estate ends automatically. |
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Term
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Definition
| This is the interest left in the grantor after transferring a fee simple determinable. |
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Term
| fee on condition subsequent |
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Definition
| The estate becomes vulnerable to repossession and the grantor has the power to terminate the grantee's estate. The grantor must expressly exercise his power to terminate. |
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Term
| Right of Entry/Power of Termination |
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Definition
| The interest left in the grantor after transferring a fee on condition subsequent. |
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Term
| Fee Simple Subject to an Executory Interest |
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Definition
The original owner may also convey to A an estate that will turn over to a third party, B, after the occurrence of the specified event. This estate is fairly recent compared to the others (16th century).
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Term
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Definition
| The interest the third party, B, holds |
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Term
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Definition
| To draft a transfer of fee simple determinable, the lawyer must use language to indicate duration and specifically provide for automatic termination upon the happening of the stated contingency and revesting to the grantor. Catch phrases: 'so long as,' 'until,' 'during that time.' However, language that only notes special limitation without an express provision for reverter will still suffice--but only for determinable estates. |
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Term
| Condition Subsequent language |
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Definition
To draft a transfer of fee on condition subsequent, the lawyer must use language expressing condition and expressly provide for a right of entry upon breach of the condition. Catch phrases: 'on condition that,' 'provided that.' Language that only expresses a condition but not right for entry is generally not enough to create a defeasible estate in the United States--but it is, to some extent, up to the courts.
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Term
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Definition
| A life estate holds future interests for either the original grantor or a third party. |
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Term
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Definition
1) to A for life; 2) to A for and during his natural life; 3) to A until he dies; 4) to A for the life of B.
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Term
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Definition
| When the possessor of the land possesses the land for the duration of a life other than his or her own. |
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Term
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Definition
| Usually any estate that is granted for a limited number of years other than life. These estates are usually condition subsequent estates as well [pay rent, etc.] and can usually be terminated through merely not wanting to be there or not wanting someone else to be there. It's a lot like renting an apartment. |
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Term
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Definition
| owned in the present and is received at the moment of conveyance; however, the possession of the property lies in the future, which is why the interest is 'future.' Any estate that is not a FSA has a future interest element since there is always a possibility the land may go to someone else by way other than the current possessor's intentional transfer. |
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Term
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Definition
| If the government takes the land, the government will have to pay compensation to the individual who has future interest in the land along with the individual who holds the estate presently. |
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Term
| TRANSFER of future estates |
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Definition
B can transfer his future interests--it is inheritable and perhaps sellable.
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Term
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Definition
| Future interest created through a fee simple determinable; grantor has the right |
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Term
| RIGHT OF ENTRY/POWER OF TERMINATION |
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Definition
| Future interest created through a fee simple on condition subsequent; right to grantor |
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Term
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Definition
| Any future interest created in the grantor that does not follow a fee simple determinable or fee simple on condition subsequent: life estates and leaseholds. |
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Term
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Definition
1) The future interest must be created at the same time as the present estate is conveyed.
2) A remainder must follow a life estate.
3) There must be natural termination.
4) There must not be a time gap; remainder must be effect immediately.
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Term
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Definition
1) The taker of the remainder is unascertainable
2) The remainder is subject to an unfulfilled condition precedent: a death is not considered a condition precedent.
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Term
| what if the condition precedent is not met in a contingent remainder? |
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Definition
| THE GRANTOR RECEIVES A REVERSION IF THE CONDITION PRECEDENT IS NOT MET |
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Term
| is a contingent remainder devisable and descendible |
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Definition
| yes unless expressly limited. |
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Term
| indefeasibly vested remainders |
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Definition
| The remainderman/his heirs are absolutely assured of receiving the land when A dies. There is no risk of fractional or complete loss. These are certain to become possessory and also certain not be prematurely cut off or cut down in size. |
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Term
| REMAINDERS VESTED SUBJECT TO COMPLETE DEFEASANCE |
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Definition
| Rests on condition subsequent as opposed to contingent remainders which rests on condition precedent; sometimes the working can provide very little difference between the former and latter types. However, RVSCD is not subject to destructibility; they are also not subject to the Rule Against Perpetuities. |
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Term
| language creating remainders vested subject to complete defeasance |
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Definition
| If the conditional language comes in a later clause than the language granting the remainder itself, it will likely be said to create a condition subsequent; usually begins with 'but if.' If it comes before, then more likely to be a condition precedent. Most courts tend to prefer a vested construction when in doubt. |
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Term
| REMAINDERS VESTED SUBJECT TO OPEN/PARTIAL DEFEASANCE |
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Definition
| A remainder in favor of a class of persons that is capable of increasing in membership [like to A's children]. If the class cannot expand or decrease, then it is not a remainder vested subject to partial defeasance--it is a indefeasibly vested. |
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Term
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Definition
| Executory interests work by springing or cutting short a previous vested fee simple estate while remainders take effect at the expiration. In other words, executory interests are what follow a fee simple defeasible. |
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Term
RULE AGAINST PERPETUITIES
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Definition
| "No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest." |
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Term
| INTERESTS COVERED BY THE RULE |
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Definition
| executory interests, contingent remainders except in the possibility of destructibility; class gifts. |
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Term
| INTERESTS EXEMPT FROM THE RULE |
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Definition
| Reversions, vested remainders except for class gifts, possibilities of reverters and rights of entry. |
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Term
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Definition
| The courts look at whether or not the future interest will vest or fail to vest within 21 years of conveyance; if it is at all possible it will not vest then the conveyance is void. The fact the interest does in fact vest during the 21 year period is irrelevant. |
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Term
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Definition
| 21 years after the life of someone who dies; must be someone already living. |
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Term
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Definition
Only the parts that are void are struck from the conveyance.
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Term
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Definition
| operates to restrict a possessor in her use if her possessory estate is limited [less than a fee simple absolute--even defeasible estates]. |
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Term
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Definition
unreasonable use of the property by the owner of the possessory estate which reduces the value of a future estate. Though, if you can prove something has been removed from the soil, you do not need to prove decrease in the market value of the land.
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Term
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Definition
When a tenant breaches the obligation of repair; example, failure to repair a leaky roof which omission will result in more than ordinary wear and tear.
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Term
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Definition
If an individual possesses a defeasible fee that has a high probably the future interest will become a present interest, the individual will be held liable for waste only if he commits an unconscionable waste.
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Term
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Definition
The court holds whether or not the construction of the apartment will result in a greater profit for the remainderman is not the test for waste; instead, the test for waste is whether the act will so change the estate so as to be an injury to the inheritance. It is clear from the will, the testator intended the residence as part of his estate. The court also holds the π is attempting to exercise ownership over the land, which π does not have the right to.
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Term
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Definition
| The court holds selling the entirety of the land would be too extreme for the provision of π's financial needs. The court holds a sale of this kind must consider the interests and benefits of both life tenant and remaindermen. The lower court used a theory of waste--it considered the unproductivity of the land to be a type of waste and therefore, the land should be sold in order to prevent a waste of resources and for the benefit of both π and ∆. I think this case contrasts with the previous one because they're very similar in fact pattern but different in result. The court here allows π to sell part of the land because selling all of it would deprive ∆ of their vested interests. |
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Term
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Definition
The principle characteristic of a joint tenancy is the right of survivorship and the last remaining tenant is the one who keeps the property in what is assumed to be fee simple absolute (unless specifically provided it is in fee simple defeasible or with a life tenancy). Each tenant has the right to the whole, which means the interest is undivided; however the interest can be divided through partition [partition in kind or partition and sale]. However, the right to partition is limited by statutes and perhaps the will of the transferror (can't partition the common areas of a condo, for example). Joint tenancy cannot be passed down by will or descent because survivorship comes into play immediately. Joint tenancy can be terminated without notice to or the consent of other tenants.
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Term
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Definition
| The safest thing to do is to explicitly say you are not creating a tenancy in common but a joint tenancy. States are divided as to what kind of language is sufficient. |
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Term
| FOUR UNITIES OF JOINT TENANCY |
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Definition
| time [the interests of the tenants must arise at the same time], title [the interests are acquired by the same instrument], interest [identical interests], and possession [common right of possession and enjoyment]. |
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Term
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Definition
| same as joint tenancy only between spouses and non-severable |
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Term
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Definition
Only requires the unity of possession; no right of survivorship; and is freely alienable inter vivos and passes to his devisees or heirs.
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Term
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Definition
| The recording statute has no effect against survivorship as it only applies to people who are purchasing a second time. Also, a joint tenancy is reduced to a tenancy in common when a joint tenant conveys her interest to another. In this case, π's mom did and thus the tenancy became tenancy in common and not joint tenancy. Furthermore, a deed does not need to be recorded in order to be valid. |
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Term
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Definition
| A divorce does not sever a joint tenancy unless the joint tenancy is explicitly severed in the divorce settlement. |
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Term
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Definition
| The elements of adverse possession against a co-tenant are the usual adverse possession elements and at least one of the following elements: the adverse possessor must first effect 1) an actual ouster [sale without consent is enough]; 2) retains exclusive possession after demand; or 3) gives his cotenant express notice of adverse possession. |
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Term
ARK LAND COMPANY V. HARPER
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Definition
| 1) property cannot be conveniently partitioned in kind; 2) the interests of one or more of the parties will be promoted by the sale; 3) the interests of the other parties will not be prejudiced by the sale. |
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Term
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Definition
| The cotenant can lease his own land without seeking the approval of the other; when the land is leased, the lessee steps into a cotenants shoes and basically becomes a cotenant himself. |
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